toobular inc :: master service agreement
This Master Service Agreement is between Toobular Inc., a Florida corporation d/b/a Toobular.com ("Toobular") and the person(s) (individual or legal person) and/or Corporation whose name appears above the signature line of the Agreement, or on any document that incorporates the Agreement by reference ("Client") and is effective on the Effective Date.
1. Defined Terms. Capitalized terms shall have the following meanings or the meanings assigned to them in the other Sections of the Agreement:
"Agreement" shall mean the Authorization Form(s) and/or Invoice(s), this Master Service Agreement, the Service Level Agreement, any Toobular Addendum to this Master Service Agreement, and the AUP, collectively. Any conflict between the documents shall be resolved by reading the documents in the foregoing order of precedence.
"AUP" shall mean Toobular's Acceptable Use Policy, posted on the Effective Date at http://www.toobular.com/terms_of_usage.htm, as it may be amended from time to time in accordance with Section 6 (AUP) of this Master Service Agreement
"Business Day" shall mean Monday through Friday, 9:00 a.m. to 5:00 p.m., eastern U.S. time, excluding any day that banks in the United States are required or permitted to be closed.
"Effective Date" shall mean the day that Client accepts the Agreement, either by signing a Toobular Authorization Form, Invoice or this Master Service Agreement, or by using the Service.
"Service Commencement Date" shall mean the date Toobular generates an e-mail message to Client that provides confirmation that project is commencing.
"Service Level Agreement" shall mean the Service Level Agreement incorporated by reference in the Authorization Form, as it may be amended from time to time by written agreement of the parties.
"Authorization Form" shall mean the Toobular Authorization Form accepted by Client, as it may be amended from time to time in accordance with the Agreement, and any subsequent or additional Authorization Forms that incorporate this Master Service Agreement by reference.
"Service" or "Services" shall include Domain Name Registrations, Web Site Hosting, Web Site Design, Programming, Copywriting, Affiliate Marketing or Search Engine Marketing Services and any Supplemental Service(s) (as defined in Section 3) provided by Toobular to Client pursuant to the Agreement.
"Term" shall mean the Initial Term and any Renewal Term, collectively.
2. Services. Contingent upon Client's satisfaction of Toobular's credit approval requirements and on Toobular's verification of the information provided by Client for the purpose of establishing the Service, Toobular agrees to provide the Services in accordance with the guidelines of each Authorization Form entered into pursuant to the Agreement and the other terms of the Agreement. In addition, Toobular may from time to time perform certain additional services on an hourly fee basis (the "Supplemental Services"), such as customization of the Services at Client's request, and other professional technical services. Supplemental Services will be performed and invoiced at Toobular's published rates or other rates solely established by Toobular and displayed to client in writing. Any Supplemental Services provided outside the scope of a website design, development, programming or marketing project will be warrantied from malfunction for a period of fifteen (15) days from launch or fifteen (15) days from original project deliverable finalization. Any Supplemental Services performed outside of the fifteen (15) day period, whether caused directly or indirectly by Toobular, its partners, affiliates or subsidiaries will be billed accordingly at Toobular's published rates or other rates solely established by Toobular and displayed to client in writing. Toobular Services, Supplemental Services and Products are NON-REFUNDABLE and NON-TRANSFERABLE FOR ANY REASON.
3. Term. The initial service term of the Agreement shall begin on the Service Commencement Date and continue for the period stated in the Authorization Form (the "Initial Term"). Toobular and Client may agree to one or more additional terms having a fixed number of months to follow the expiration of the Initial Term (each a "Renewal Term"). If upon expiration of the Initial Term no Renewal Term has been established by agreement of the parties, the Agreement shall automatically renew for successive extended terms of thirty (30) days each (each an "Extended Term") until Toobular or Client provides the other with thirty (30) days advance written notice of non-renewal. The Initial Term applicable to any Authorization Form executed subsequent to the Effective Date shall begin on the Service Commencement Date stated in that Authorization Form and continue for the period stated in that Authorization Form.
(a) Fees. Client agrees to pay the fees stated in the Authorization Form and Toobular's fees for Supplemental Services (if any) as described in Section 2 (Services) above at the project or hourly fee established by Toobular. Toobular may adjust the hourly fee for services in their sole discretion on a per-project basis. Toobular's initial invoice may include set up fees and a prorated portion of the monthly recurring fee from the Service Commencement Date to the last day of the calendar month . Toobular's initial invoice may also include set up fees and an entire monthly fee or quarterly fee if stated on the Authorization Form accordingly. Toobular may require payment in full of its first invoice before beginning the Service. Following the Service Commencement Date, monthly recurring fees shall be invoiced in advance on or around the first day of each calendar month, and are due upon receipt. Invoices for Supplemental Services, Additional Services, reinstatement of service, upgrades and other non-recurring amounts are due on receipt or due date noted on Authorization Form or Invoice. Fees not disputed within thirty (30) calendar days of due date are conclusively deemed accurate. Payments must be made in United States dollars.
(b) Collections. Toobular may suspend any or all Services on four (4) Business Days' advance notice to Client if payment for any Service is overdue. Client agrees to pay Toobular's then current reinstatement fee following a suspension of service for non-payment. Toobular may charge interest on amounts that are over due by ten (10) days or more at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. Client agrees to pay Toobular's reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
(c) Early Termination. Client acknowledges that the amount of the monthly recurring fee for the Services is based on Client's agreement to pay the fee for the entire Term. Without limiting any other remedy available to Toobular arising from an early termination of the Agreement, in the event Toobular terminates the Agreement for Client's breach of the Agreement in accordance with Section 13(b) (i) - (iii) (Termination), or Client terminates the Services other than for Toobular's breach in accordance with Section 13(a) (i) - (ii) (Termination), all fees due under the Agreement, including the monthly recurring fees for the remaining portion of the Term, are due thirty (30) days following termination of the Services.
(d) Taxes. Client shall remit to Toobular all sales, VAT or similar tax imposed on the provision of the Services (but not in the nature of an income tax on Toobular) regardless of whether Toobular fails to collect the tax at the time the related Services are provided. Client will provide such information and documentation reasonably requested by Toobular to determine whether Toobular is obligated to collect VAT from Client.
5. Client Obligations. Client agrees to do all of the following at its expense:
(a) Security Precautions. Use reasonable security precautions in connection with its use of the Services and, if Client resells Toobular's services, require its Clients and end users to use reasonable security precautions;
(b) Law, AUP. Comply with all legal requirements applicable to Client's use of the Services and with Toobular's AUP, and if Client resells Toobular's Service, require its Clients and end users to comply with applicable legal requirements and Toobular's AUP; and
(c) Investigation of AUP. Cooperate with Toobular's reasonable investigation of any suspected violation of the AUP.
6. AUP. Client agrees that Toobular may, in its reasonable commercial judgment, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Client's use of the Services. Amendments to the AUP are effective on the earlier of Toobular's notice to Client that an amendment has been made, or the beginning of any renewal term defined in the AUP. However, if: (i) the amendment would materially and adversely affect Client, (ii) Client provides Toobular with a written notice describing its objection to the amendment in reasonable detail within five (5) Business Days of the effective date of the amendment, and (iii) Toobular does not agree to waive the amendment as to Client within five (5) Business Days of Client's notice, then Client may terminate the Agreement without liability as provided in Section 13 (a)(iii) (Termination).
7. Suspension of Service. Client agrees that Toobular may suspend Services to Client without liability if: (i) Toobular reasonably believes that the Services are being used in violation of the AUP or applicable law; (ii) Client fails to cooperate with any reasonable Toobular investigation of any suspected violation of the AUP; (iii) there is a denial of service attack on Client's servers or other event for which Toobular reasonably believes that the suspension of Services is necessary to protect its network or its other Clients; or (iv) requested by a law enforcement or government agency. Information on Toobular's servers will be unavailable during a suspension of Services. Unless a law enforcement or government agency directs otherwise, Toobular shall give Client written notice of a suspension under this Section, which notice shall be at least twenty four (24) hours in advance of the suspension unless suspension on shorter or contemporaneous notice is necessary to protect Toobular or Toobular's other Clients from an imminent and significant risk.
(a) Reciprocal. Toobular covenants, represents and warrants to Client, and Client covenants, represents and warrants to Toobular, that: (i) it has the power and authority and the legal right to enter into the Agreement and to perform its obligations under the Agreement; (ii) it has taken all necessary action on its part to authorize the execution and delivery of the Agreement; and, (iii) the execution and delivery of the Agreement and the performance of its obligations hereunder do not conflict with or violate applicable laws or regulations, and do not conflict with or constitute a default under its charter documents.
(b) Client. Client represents and warrants to Toobular that: (i) the information Client has provided for the purpose of establishing an account with Toobular is accurate; (ii) Client will not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D:3, as set forth in Supplement No. 1 to Part 740 of the United States Export Administration Regulations, and (iii) Client shall not provide administrative access to the Service to any person (including any natural person or government or private entity) that is located in or is a national of any embargoed or highly restricted country under United States Export Regulations, which include, as of April 1999-2007, Cuba, Iran, Libya, North Korea, Sudan or Syria.
9. Unauthorized Use of Service. Toobular agrees only to perform the specific services described in the Authorization Form or other portion of the Agreement. Client is otherwise responsible for the security of the website and/or servers provided pursuant to this Agreement. Client shall be responsible for any unauthorized use of the Services by any person, and shall pay all fees incurred for its account by any person using the Services, unless such unauthorized use results from Toobular's failure to perform its obligations under the Agreement.
10. Indemnification. The parties agree that the indemnification obligations defined in this Section shall be in lieu of and supersede any indemnification obligations that may otherwise exist by law.
(a) Client. Client agrees to indemnify and hold harmless Toobular, Toobular's affiliates, and each of their respective officers, directors, attorneys, agents, and employees from and against any and all claims, requests for injunctive relief, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys' fees) brought by a third party under any theory of legal liability arising out of or related to any of the following: (i) actual or alleged use of the Services in violation of: (A) the AUP, (B) any other portion of the Agreement, or (C) applicable law, by any person regardless of whether such person has been authorized to use the Services by Client, except for unauthorized use that results from Toobular's negligence or failure to perform its obligations under the Agreement, (ii) actual or alleged breach by Client of its obligations to its Clients or end users; and (iii) any dispute regarding the control of Client's account with Toobular. Without limitation of the foregoing, Client shall reimburse Toobular actual fees and expenses of outside counsel retained by Toobular to respond to third party complaints regarding the use of the Services in violation of the Agreement, including complaints under the Digital Millennium Copyright Act.
(b) Reciprocal. Each party agrees to indemnify and hold harmless the other party, the other party's affiliates, and each of their respective officers, directors, attorneys, agents, and employees from and against any and all claims, requests for injunctive relief, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys' fees) brought by a third party under any theory of legal liability arising out of or related to the indemnifying party's actual or alleged infringement or misappropriation of a third party's copyright, trade secret, patent, trademark, or other proprietary right.
(c) Procedures. A party seeking indemnification under this Section shall provide prompt notice of its claim for indemnification to the indemnifying party; provided, however, that failure to give prompt notice shall not affect the indemnifying party's obligations under this Section unless and to the extent that the failure materially prejudices the defense of the matter. The indemnified party will have the right to select counsel to defend it in respect of any indemnified matter under this Section; provided, however, that the counsel selected must be reasonably satisfactory to the indemnifying party. The indemnified party will keep the indemnifying party informed of the status of any litigation or dispute resolution procedure, will give reasonable consideration to the suggestions and requests of the indemnifying party with respect to the conduct of the litigation or dispute resolution procedure, and will not settle any matter covered by this Section without the prior consent of the indemnifying party, which shall not be unreasonably withheld. Notwithstanding anything in this Section to the contrary, if the indemnifying party is indemnifying multiple persons related to the subject matter of the indemnification, the indemnifying party shall have the right to seek consolidation of all such actions and to select counsel to defend the actions. Amounts due under this Section shall be paid as incurred and may be offset against other amounts due under the Agreement.
11. Disclaimer of Warranties.
(a) TOOBULAR DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. Client ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CLIENT'S PRIVACY, CONFIDENTIAL INFORMATION, AND PROPERTY.
(b) TO THE EXTENT PERMITTED BY APPLICABLE LAW, TOOBULAR DISCLAIMS ANY AND ALL WARRANTIES NOT EXPRESSLY STATED IN THE AGREEMENT INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. Client IS SOLELY RESPONSIBLE FOR THE SUITABILITY OF THE SERVICES CHOSEN. ALL GOODS AND SERVICES ARE PROVIDED ON AN "AS IS" BASIS, EXCEPT AS EXPRESSLY STATED IN THE SERVICE LEVEL AGREEMENT OR OTHER PORTION OF THE AGREEMENT.
12. Limitation of Damages. The parties agree that the allocations of risk made in this Section are reasonable and that they would not enter into the Agreement without these limitations on liability.
(a) EXCEPT AS DESCRIBED IN THE SERVICE LEVEL AGREEMENT, TOOBULAR SHALL NOT BE LIABLE TO THE Client FOR HARM CAUSED BY OR RELATED TO Client'S USE OF THE SERVICES OR INABILITY TO USE THE SERVICES UNLESS THE HARM WAS CAUSED BY TOOBULAR'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(b) CLIENT HEREBY RELEASES TOOBULAR FROM ANY LIABILITY FOR LOSS OF DATA TO THE EXTENT THAT THE DATA HAS CHANGED SINCE THE TIME THAT TOOBULAR WAS LAST REQUIRED BY THE AGREEMENT TO PERFORM A BACK UP.
(c) NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY PUNITIVE DAMAGES.
(d) NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, EXCEPT FOR CLAIMS BASED ON TOOBULAR'S WILLFUL MISCONDUCT, THE MAXIMUM AGGREGATE LIABILITY OF TOOBULAR AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THREE TIMES THE MONTHLY RECURRING FEE PAYABLE UNDER THE AUTHORIZATION FORM(S) IN EFFECT AT THE TIME OF THE OCCURENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM.
(e) NO CLAIM MAY BE ASSERTED BY EITHER PARTY AGAINST THE OTHER PARTY WITH RESPECT TO ANY EVENT, ACT OR OMISSION THAT OCCURRED MORE THAN TWO (2) YEARS PRIOR TO SUCH CLAIM BEING ASSERTED.
(a) Client. The Agreement may be terminated by Client prior to the expiration of the Initial Term or Renewal Term without liability (except for amounts due for Services through the effective date of termination) as follows: (i) Toobular fails in a material way to provide the Services in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Client's written notice describing the failure in reasonable detail; (ii) Toobular materially violates any other provision of the Agreement and fails to cure the violation within thirty (30) days of Client's written notice describing the violation in reasonable detail; or (iii) upon thirty (30) days advance written notice in the event of an amendment to the AUP that materially and adversely affects Client and that is not waived by Toobular as provided in Section 6 (AUP).
(b) Toobular. The Agreement may be terminated by Toobular prior to the expiration of the Initial Term or Renewal Term, without liability as follows: (i) upon four (4) Business Days notice if Client is overdue on the payment of any amount due under the Agreement; (ii) Client materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (30) days of a written notice from Toobular describing the violation in reasonable detail; (iii) upon one (1) Business Days notice if Client's Service is used in violation of a material term of the AUP more than once; or (iv) upon reasonable notice of at least ninety (90) days if Toobular is threatened with a legal claim for copyright or patent infringement related to the provision of the Service and is unable to modify the Service in a way that avoids an ongoing risk of liability.
(a) Confidential Information. Confidential Information is all information disclosed by one party to the other that the other, whether before or after the execution of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) for Toobular, Toobular's unpublished prices for services, audit and security reports, server configuration designs and other proprietary technology, (ii) for Client, content transmitted to or from, or stored by Client on, Toobular's servers, and (iii) with respect to both parties, other information that is conspicuously marked as "confidential" or if disclosed in non-tangible form, is verbally designated as "confidential" at the time of disclosure and confirmed as confidential in a written notice given within thirty (30) day of disclosure; but excluding any information which is independently developed by a non-disclosing party as shown by such party's written business records, is or becomes generally available to the non-disclosing party or the public other than through violation of the Agreement, or is required to be disclosed by law or regulation.
(b) Use and Disclosure. Each party agrees not to use the other party's Confidential Information except in connection with the performance or use of the Services, or the exercise of its rights under this Agreement, or to disclose the other's confidential information to any third party except as provided in subsection (d) below and to its service providers, agents and representatives who need to know the information to represent or advise it with respect to the subject matter of the Agreement; and provided that such service providers, agents and representatives are bound by confidentiality restrictions at least as stringent as those stated in the Agreement.
(c) Toobular's Use of Client's Name. Client agrees that Toobular may publicly disclose that Toobular is providing services to Client and may include Client's name in promotional materials, including press releases and on Toobular's Web site. Neither party may publicly use the other party's logo or other trade or service mark without that party's permission.
(d) Requests for Client Information. Notwithstanding anything to the contrary above, Client agrees that Toobular may, without notice to Client, (i) report to the appropriate authorities any conduct by Client or any of Client's Clients or end users that Toobular believes violates applicable law, and (ii) provide any information, including Confidential Information, it has about Client or any of its Clients or end users in response to a formal or informal request from a law enforcement or government agency. Toobular may provide any information, including Confidential Information, it has about Client or its Clients or end users in response to a formal request in a civil action that on its face meets the requirements for such a request.
15. Software. Client agrees not to remove, modify or obscure any copyright, trademark or other proprietary rights notices that appears on any software provided by Toobular. Client may not reverse engineer, decompile, or disassemble any Toobular provided software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, or is permitted by the terms of any "open source" license that governs the use of the software.
16. Third Party Products. As a convenience to Client, Toobular may from time to time arrange for Client's purchase or license of third party software, services, and other products not included as part of the Service, and/or may provide support to Client in relation to those products. Toobular MAKES NO REPRESENTATIONS OR WARRANTY WHATSOEVER REGARDING SUCH THIRD PARTY PRODUCTS AND RELATED SUPPORT SERVICES AND THEY ARE PROVIDED "AS IS." Client's use of third party software, services, and other products is governed by the terms of any license or other agreement between Client and the third party.
17. Notices. Notices to Toobular under the Agreement shall be given in writing via electronic mail or established and well-known express courier to
20533 Biscayne Blvd. Suite 458
Aventura, FL 33180
Notices to Client shall be given via electronic mail to the individual designated as the Contact on the Authorization Form or by means reasonable under the circumstances, including an e-mail to a known contact. Notices of amendments to the AUP may be given by posting a notice of the amendment on the Client's MyToobular portal. Notices are deemed received on the day delivered, or if that day is not a Business Day, as of the beginning of the first Business Day following the day delivered.
(a) Solicitation of Toobular Employees. Client agrees that it shall not solicit any Toobular employee with whom Client has had direct contact in connection with this Agreement for employment with Client or any other person during the term of this Agreement and for twelve (12) months following termination of this Agreement. Notwithstanding the foregoing, Client shall not be precluded from (i) hiring an employee of Toobular who independently approaches Client, or (ii) conducting general recruiting activities, such as participation in job fairs or publishing advertisements in publications or on Web sites for general circulation. In the event of a violation of this provision, in addition to any other right Toobular may have at law or in equity, Client shall make a one-time payment to Toobular in the amount of fifty percent (50%) of the employee's base salary for one year.
(b) Ownership. Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trade secrets, inventions, copyrights, and other intellectual property, and that Toobular shall own any intellectual property that it may develop in the course of performing the Services. Client does not acquire any ownership interest or rights to possess Toobular's server(s) or other hardware, and has no right of physical access to the hardware. Upon termination of the Agreement, Client agrees to promptly release any Internet protocol numbers, addresses or address blocks assigned to Client in connection with the Service (but not any URL or top level domain or domain name) and agrees that Toobular may take steps to change or remove any such IP addresses.
(c) Governing Law, Jurisdiction, Venue, Restrictions. The Agreement shall be governed by the laws of the State of Florida, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE OR FEDERAL COURTS IN MIAMI-DADE COUNTY, FLORIDA, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO. Client agrees that it shall not bring or participate in any class action lawsuit against Toobular, its affiliates or any of their respective officers, directors, agents or employees. Should any arbitration, litigation or legal action be commenced, the prevailing party may recover reasonable attorney’s fees and costs incurred thereby.
(d) Modifications. Except for the following, the Agreement may be amended only by a formal written agreement signed by both parties: (i) amendments of the AUP as described in Section 6, above, and (ii) changes to the "Server Specifications," "Software and Services," or fees section of an existing Authorization Form may be made by an exchange of correspondence (including electronic mail) that includes both parties' express consent to the change. The terms on either party's purchase order or other business forms are not binding on the other party unless they are expressly incorporated into a formal written agreement signed by both parties.
(e) Non-Waiver. A party's failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of the Agreement. A party's waiver of any of its rights under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.
(f) Captions. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties.
(g) Counterparts. Any documents signed in connection with the Agreement may be signed in multiple counterparts, which taken together will constitute one original. Facsimile signatures or signatures on an electronic image, such as .pdf or .jpg format, shall be deemed to be original signatures.
(h) Survival. The following provisions will survive expiration or termination of the Agreement: fees, indemnity obligations, confidentiality obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement.
(i) Force Majeure. Neither party shall be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond that party's control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
(j) No Third Party Beneficiaries. There are no third party beneficiaries to the Agreement. Neither insurers nor the Clients of resellers are third party beneficiaries to the Agreement. Client may authorize its subsidiaries and affiliates to use the Services, provided that no such person shall be a third party beneficiary of the Agrement or otherwise be in privity of contract with Toobular, and Client shall be responsible for use of the Services by its affiliates and subsidiaries to the same extent as if Client had been using the Service itself.
(k) Severability. In the event any term of this Agreement is held unenforceable by a court having jurisdiction, the remaining portion of the Agreement will remain in full force and effect, provided that the Agreement without the unenforceable provision(s) is consistent with the material economic incentives of the parties leading to the Agreement.
(l) Relationship Between the Parties. The parties are independent contractors and not partners or joint venturers. Neither party is the agent of the other and neither party may represent to any person that it has the power to bind the other on any agreement. The Agreement is non-exclusive. Toobular may provide service to any person, including a competitor of Client.
(m) Assignment. Client may not transfer the Agreement without Toobular's prior written consent. Toobular's approval for assignment is contingent on the assignee meeting Toobular's credit approval criteria. Toobular may assign the Agreement in whole or in part.
(n) Notice of Changes to Documents. Client represents that it has not made any change to the final signed Authorization Form or other documents constituting the Agreement that have not been brought to the attention of Toobular via a redlined document, e-mail correspondence or other means reasonably calculated to put Toobular on notice of the change.
(o) Agreement. The Authorization Form(s), Service Level Agreement, Toobular's AUP, and any Toobular Addendum to this Master Service Agreement accepted by Client are hereby incorporated in this Master Service Agreement by reference and together collectively constitute the Agreement. The Agreement is the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any prior agreement, understanding or communication, written or oral.